Can She Really Take the Family Farm? Proposed Changes to Classification of Inherited Property in Mississippi Divorce Proceedings

Abstract

Is inherited property subject to equitable division in divorce proceedings? This is a question that the Mississippi appellate courts have long grappled with, and one that they are yet to decide on fully. The Mississippi Supreme Court and Court of Appeals have provided three separate and conflicting methods for deciding classification of inherited property in divorce proceedings: (1) all inherited property is separate; (2) inherited property is marital in nature if it is commingled between the spouses to the point ownership is indistinguishable; and (3) inherited property is marital in nature if it is subject to use by the spouses/family during the course of the marriage. These three conflicting methods provided by the appellate courts fail to provide coherent guidelines for trial courts. This has caused inconsistent and unpredictable holdings, considered on a case by case basis, and decided solely on judicial discretion rather than well founded principles of law.

This article addresses each of Mississippi’s three current doctrines used to classify inherited property in divorce proceedings. It highlights the inconsistencies between the three, and discusses their strengths and shortcomings. The article then proposes a four-factor test that combines the existing precedents into one coherent method of classifying inherited property in divorce proceedings. The test first considers the non-inheriting spouse’s contribution to the upkeep and maintenance of the property. It then asks whether the property is the marital home. Next, the test considers whether commingling or familial use took place, and if so, to what extent. The final factor asks whether the inherited property constitutes more than half of the total marital estate. The article proposes that each factor constitute a point, and the inherited property be based on tallies from the four factors. This proposed factor test provides a clear and broadly applicable standard by which the state judiciary can consider all types of fact patterns and still have consistent, predictable, and equitable classifications of inherited property.